HKSAR v. Mtalu Rajab Ally Rajab

CACC 341/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 341 OF 2013

(ON APPEAL FROM HCCC NO 127 OF 2007)

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REASONS FOR JUDGMENT

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Hon Barnes J (giving the Reasons for Judgment of the court):

Introduction

1.The applicant pleaded guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  On 16 August 2007, he was sentenced by Hon Tong J (the judge) to 14 years and 8 months imprisonment.

2.On 18 September 2013, the applicant applied for leave to appeal against sentence out of time.

3.At the conclusion of the hearing, we dismissed his application.  We indicated that we would give our reasons in due course, which we now do.

Summary of facts

4.The facts are straight forward.  The applicant arrived in Hong Kong on 19 November 2006, after taking a flight from Tehran, Iran and via Doha, Qatar.  He imported a total of 1.058 kilogrammes of heroin hydrochloride by swallowing 160 pellets containing the said drug.  The street value of the dangerous drug was estimated to be HK$1,002,400.

Background of and mitigation for the applicant

5.The applicant was 23 at the time of the hearing. He had a clear record in Hong Kong.  In mitigation, the judge was told that the applicant was in a second-hand mobile phone business but the earnings were not enough to support his family - which consists of his parents and three sisters under 10, the oldest of whom has learning difficulties. The applicant was also engaged to be married.  He was lured into the business of drug trafficking to earn money to support his family and for the impending wedding.  He had not received the reward as he was arrested in Hong Kong.

Reasons for Sentence

6.The judge saw no reason to depart from the sentencing guidelines and adopted a starting point of 22 years, which he reduced to 14 years and 8 months to reflect the applicant’s guilty plea.

Grounds of appeal

7.The applicant, who is not legally represented, made it clear in his home-made ground of appeal (dated 18 September 2013) that he was not appealing against conviction or sentence.  He was asking for a reduction of sentence.  He said he had already learnt the lesson and promised that he would never indulge in such an activity.  No reason was advanced as to the reason for the delay.

8.In an affirmation attached to the application (also dated 18 September 2013), and another letter dated 1 February 2014, the applicant reiterated the fact that he was not appealing against conviction or sentence, but asking for a reduction of sentence.

9.Before us, the applicant again confirmed that was indeed his position.

10.As to the reason for the delay, the applicant said he was ignorant of the law and he only came to know the basics of the law after talking to others.

Discussion

11.Although the applicant lodged an application for appeal against sentence out of time, he has made it abundantly clear that he was not appealing against either conviction or sentence, but asking for a reduction of sentence.  It would appear the applicant has mistakenly believed that this Court can exercise the prerogative of mercy.  He should have made his plea for mercy to the Executive branch of the government, and/or to the Long Term Prison Sentences Review Board.

12.In any event, treating this application as it stands on paper, this Court has to consider the length of delay, the reason for such delay and the grounds of appeal before we can decide whether leave to appeal against sentence out of time should be granted (see HKSAR v Oh Chun Kit [2013] 1 HKLRD 437). 

13.The delay of 6 years is a substantial one.  The applicant’s explanation for the delay is not reasonable.  For this reason alone the application falls to be dismissed.  

14.Further, as the applicant himself realized, the sentence imposed was in any event neither wrong in principle nor manifestly excessive.

15.For these reasons, we dismissed the applicant’s application to appeal against sentence out of time.

Miss Fung Mei-ki, Mickey, SPP of the Department of Justice, for the respondent

The applicant appeared in person